¶1concurring:
¶2I concur in the order because the judgment and default in the district court are based upon an affidavit which states that the person who made the service of the summons upon the defendant was over 18 years of age. This is the age required by the California statute. Section 28 of the practice act (Comp. Laws, 3123) requires the service to be made by the sheriff or his deputy, or by a citizen of the United States over 21 years of age, and allows the service when made in this state to be shown by affidavit or certificate of the sheriff or deputy, or by affidavit of the person making the service. When the service is made out of the state, it may be proved by affidavit of any person showing that he has served the summons, and that at the time of such service he was a citizen of the United States over 21 years of age. (Maynard v. McCrellish, 57 Cal. 355; Horton v. Gallardo, 88 Cal. 581, 26 Pac. 375.)
¶3*326No support is found in the language of the statute, or in the cases now cited, for the statement of this court regarding section 517 of the practice act, briefly expressed in Pratt v. Stone, 25 Nev. 365, that "we think it evident from the above provisions of the statute that service is not complete until after the expiration of six weeks from the date of personal service out of the state when such service is made in lieu of publication, or in lieu of publication and deposit in the postoffice when such deposit is also required.” If, instead of properly overruling that decision, it be allowed to stand as a construction controlling the service and time for answering under the provisions relating to justice courts, I do not think it ought to be extended or applied to actions in the district court.
¶4Giving force to the ordinary meaning of the words used, the language in section 31 that the order shall direct "the publication to be made … for a period of six weeks,” and that, "when publication is ordered, personal service of a copy of the summons and complaint out of the state shall be equivalent to publication and deposit in the postoffice,” means that personal service out of the state shall be equivalent to publication and deposit in the postoffice, and consequently equivalent to the publication indicated and directed by that section, which is for six weeks. The statute does not state that service out of the state shall be equivalent to one insertion of the summons in the newspaper, but means that such service shall be equivalent to completed publication for that period. Hence it is not necessary after the service out of the state to wait for six weeks as a period of publication, for no publication is required when the defendant is served out of the state, and the very object of such service is to avoid publication. As "the service of summons shall be deemed complete in case of publication at the expiration of six weeks from the first publication,” and the service out of the state is made "equivalent to publication,” such service is equivalent to full publication, and makes the service complete.
¶5Sections 24 and 25 provide that the time in which the *327summons shall require the defendant to answer the complaint shall be ten days if the defendant is served in the county in which the action is brought, twenty days if the service is made out of the county, but in the district in which the action is brought, and forty days in all other cases. The conclusion is that as the statute makes the personal service of summons upon the defendant out of the state after order of publication equivalent to publication, which means completed publication, the defendant has the same time to answer after personal service upon him out of the state that he would have after the close of the six-weeks’ period of publication, if he were served by publication, which is forty days. Hence in my judgment section 31 previously had the same meaning which the legislature has explicitly given it by the amendment of 1909, and the district court was right in its conclusion that personal service out of the state was complete at the time it was made, and that defendant was allowed only forty days thereafter in which to answer.
¶6In the McBlain case, 77 Cal. 507, 20 Pac. 61, there was no question presented or determined similar to the one here. The New York decisions were expressly based upon section 137 of the code in that state, which does not appear in ours. (Market Nat. Bank v. Pacific Nat. Bank, 89 N. Y. 399; Brooklyn Trust Co. v. Bulmer, 49 N. Y. 85.)
¶7Subdivision 5 of section 135 of the New York code (Laws N. Y. 1864, Yoorhis’s Code, 8th Rev. Ed.) contained a provision very similar to section 31 of our practice act, but section 137 in New York provided that: " In the cases mentioned in section 135, the service of the summons shall be deemed complete at the expiration of the time prescribed by the order of publication. ”
¶8Although our practice act states that, in cases of service by publication and deposit in the postoffice, the service shall not be deemed complete until after the expiration of six weeks, it does not contain any provision similar to section 135 in New York, nor any other specifying that personal service of summons out of the state shall not be deemed complete at the time of such service *328or until the expiration of the period prescribed by the order of publication. The construction given by the court in Pratt v. Stone, and followed by the chief justice in his opinion, would result in legislating into our practice act a provision which it never contained, but which was enacted as a part of the New York code.
¶9In Dykers v. Woodward, 7 How. Prac. (N.Y.) 313, it was held that the time to answer commences to run from the day of the personal service out of the state, and in the opinion by Justice Roosevelt it is said. " When, therefore, the code says that' personal service of a copy of the summons and complaint, out of the state is equivalent to publication,’ it means equivalent to complete service, so as to make the twenty days’ limitation of the period to answer commence running from the day of such service. The six successive weekly insertions of the advertisement are not with the view of giving time to a distant party to answer, but to increase the chances of his getting notice of the suit. Two or three insertions, the law presumes, might be overlooked. It requires at least six at intervals of a week each to raise a legal presumption of notice; and even then it is but a presumption. Still, for the purpose of rendering the proceedings valid, it is allowed to have the effect of actual notice. Why, then, should not personal service, which is actual notice, have the same effect?”
¶10In the past judgments may have been rendered upon default taken more than forty days after order of publication and personal service out of the state without waiting an additional period of six weeks for a publication which did not take place and was not required by the terms of the practice act. If any questions regarding the validity of these judgments based upon defaults entered in compliance with the evident requirements of the statute arise in the future, they ought to be sustained, regardless of any decision heretofore rendered affecting the practice in justice courts. Otherwise, grave consequences may ensue, divorces may be declared void, marriages bigamous, children illegitimate, and property rights, may be lost. Protection from these results ought to be *329afforded when it may be attained by a fair construction of the statute.